Advisory Opinion 07-006

Facts and Procedural History:

On November 20, 2006, IPAD received letters, dated November 16, 2006, from Jeffrey Hane, an attorney representing the Middle Snake Tamarac Rivers Watershed District. Mr. Hane asked the Commissioner to issue an advisory opinion regarding the classification of certain data. IPAD sought clarification, which Mr. Hane provided in a letter dated December 8, 2006. The Commissioner sought and received comments from Tracy Anderson, Elden Elseth, and Loren Zutz.

A summary of the facts as Mr. Hane provided them is as follows.

In a document dated October 13, 2006, Mr. Anderson requested:

. . . that existing audio recordings of District meetings or made in the course of conducting District business made by managers Mr. Loren Zutz and Mr. Elden Elseth be made available for public inspection at a convenient [sic] time.

In his opinion request, Mr. Hane wrote:

It is my understanding, based in part by my presence at Board of Manager monthly meetings where Managers Elseth and Zutz were present, that the Managers used electronic devices to record the proceedings, recording them in whole or at least in part. I am not aware of either Manager using their recording device during the meeting for the purpose of taking private notes. When asked by the Watershed Administrator to assist him in responding to Mr. Anderson's request, it was my opinion that these recordings are more likely than not public data, since they were created by members of a public body and are a verbatim recording of the proceedings of a public body, and the Managers created them while exercising their official duties.

In a letter dated November 13, 2006, Wally Dietrich asked to inspect:

1. All notes taken by Tracy Anderson while serving on the [District] as a Board Manager. This request includes regular, special, advisory and committee meetings.
2. All notes taken by Tracy Anderson while serving on the [District] as a Board Manager at closed meetings concerning litigation where the issue has now been settled.

In his opinion request, Mr. Hane wrote:

I am aware of a previous opinion where the commissioner believed that notes taken by a school board member for the purpose of creating official minutes were public data. Personal notes taken by individual board members for their own use or benefit, it would seem, would not be government data created by the agency itself. If such notes were government data created by the agency, then presumably all notes created by any member of any body of a political subdivision would be subject to a data practice request and subject to the data retention rules. . . .

Especially troublesome to me is Mr. Dietrich's request to inspect notes taken during closed meeting [sic] where the attorney-client privilege was in place and attorneys for the [District] were explaining legal theories, discussing litigation strategy, or otherwise counseling our client. . . .

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Issues:

Based on Mr. Hane's opinion request, the Commissioner agreed to address the following issues:

Pursuant to Minnesota Statutes, Chapter 13, what is the classification of data contained in audio tape recordings that two Middle Snake Tamarac Rivers Watershed District board managers made of board meetings? Pursuant to Minnesota Statutes, Chapter 13, what is the classification of notes taken by a former Middle Snake Tamarac Rivers Watershed District board manager during board meetings while he was a member of the board?

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Discussion:

Issue 1:

Pursuant to Minnesota Statutes, Chapter 13, what is the classification of data contained in audio tape recordings that two Middle Snake Tamarac Rivers Watershed District board managers made of board meetings?

Minnesota Statutes, section 13.02, subdivision 7, defines government data as all data collected, created, received, maintained or disseminated by any government entity regardless of its physical form, storage media or conditions of use.

The term government entity is defined at section 13.02, subdivision 7a, as a state agency, statewide system, or political subdivision. Thus, any data an entity or its governing board creates, maintains, etc., are government data. One exception to this general rule is if an employee or governing board member creates, maintains, etc., data that are personal. That is, data an employee or official did not create in his/her government capacity and data the purpose of which are not related to the operations of government. (See Advisory Opinions 01-075, 02-049, 05-017.)

Whether government data are public or not public depends upon how the data are classified in Chapter 13, other Minnesota laws, or federal law.

The District is a political subdivision. Thus, any audio recordings of meetings of the District's governing board made by members of its governing board, including Mr. Elseth and Mr. Zutz, are government data, and the responsibility of the District. Because it does not seem possible that audio recordings of board meetings could contain personal data, the Commissioner assumes all the data contained in the audio recordings are government data.

In their comments to the Commissioner, Mr. Elseth and Mr. Zutz discussed that they recorded the meetings on digital recording devices. They wrote, After recording on the device it must either be downloaded onto a computer using a licensed computer program or erased. This does not change the fact that the recordings are government data.

As to the classification of the audio recordings, the Commissioner was not made aware that any of the recordings occurred during a closed meeting or that any provision in Chapter 13 or another statute classifies the data as anything other than public. Therefore, they are public pursuant to section 13.03, subdivision 1.

Government data consist of both official and non-official records. Official records are defined in Minnesota Statutes, section 15.17 those records . . . necessary to a full and accurate knowledge of [one's] official activities.

Government entities are required to keep official records at least as long as their retention schedules require. (See Minnesota Statutes, section 138.17.)

In their comments to the Commissioner, Mr. Elseth and Mr. Zutz wrote, [Mr. Zutz] is unable to locate the recording and believes it was erased and that the recording does not exist.

They also wrote:

With regard to [Mr. Elseth], a third party and not a member of the Board of managers . . . had asked Mr. Elseth to record meetings for him . . . The recordings were made on a device owned by [the third party]. . . . The recordings were later downloaded to [the third party's] personal computer and the recordings on the device owned by [the third party] were erased.

The Commissioner's opinion is that the audio recordings Mr. Elseth and Mr. Zutz made of the board meetings are not official records and, therefore, are not subject to retention requirements. Based on the comments from Mr. Elseth and Mr. Zutz, it appears the data no longer exist. Although the District is not required to maintain the data for any specific period of time, if the audio recordings existed at the time Mr. Anderson made his request, and the District was in possession of them, the District was required to provide access to them.

A final note is in order. Mr. Elseth discussed that he made audio recordings for a third individual. Whether it is appropriate for governing board members to make audio recordings for members of the public and whether those recordings then take on a personal data status depends upon many factors, such as whether there is a board policy permitting such recordings and whether governing board members are transparent about for whom they are making recordings. Here, as stated above, based on the facts presented to the Commissioner, her opinion is that the audio recordings are government data.

Issue 2:

Pursuant to Minnesota Statutes, Chapter 13, what is the classification of notes taken by a former Middle Snake Tamarac Rivers Watershed District board manager during board meetings while he was a member of the board?

As discussed above in the analysis of the Issue 1, the District is a political subdivision. Any notes Mr. Anderson took at board meetings when he was a governing board member are government data unless the data are unrelated to his fulfilling his board member responsibilities and are personal. Thus, the first part of the District's analysis into whether the notes may be released is to determine whether they contain any personal data; if so, such data are not government data and not subject to Chapter 13.

As to the classification of any government data in the notes, the Commissioner offers the following guidance. All government data are public unless otherwise classified. If any of the data in the notes are classified in Chapter 13 or other statute as anything other than public, the District cannot release them. This would include any data classified by section 13.393 as attorney data. (See Advisory Opinions 96-038, 97-009, and 05-009.)

The Commissioner's opinion is that the notes Mr. Anderson took at board meetings when he was a board member are not official records and, therefore, are not subject to retention requirements. Although the District is not required to maintain the data for any specific period of time, if any of the notes existed at the time Mr. Dietrich made his request, and the District was in possession of them, the District was required to provide access to them.

A final note is in order. If the District does not have a records retention schedule listing official records and how long they need to by maintained, it should create one promptly.

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Opinion:

Based on the facts and information provided, my opinion on the issues that Mr. Hane raised is as follows:

Data contained in audio tape recordings that two Middle Snake Tamarac Rivers Watershed District board managers made of board meetings are public pursuant to section 13.03, subdivision 1. Notes taken by a former Middle Snake Tamarac Rivers Watershed District board manager during board meetings while he was a member of the board are public pursuant to Minnesota Statutes, section 13.03, subdivision 1.

Signed:

Dana B. Badgerow
Commissioner

Dated: January 30, 2007

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